Kansas City, Memphis & Birmingham Railroad v. Childers , 132 Ala. 611 ( 1902 )

HARALSON, J.

— The proof on the part of the plaintiff tended to show that the cow was killed by a train on defendant’s road running from east to west; that the track of the road east of where she was found was straight for at least a quarter of a mile, and that there was a curve in the road about two- hundred yards west of that point. If this was true, in view of the fact that persons running a train are charged with the duty of keeping a lookout for animals and using diligent efforts to avoid injuring them, the character of the road, at and on each side of the place of the accident, left it open to' the jury to infer, that by the exercise of due diligence on the part of the engineer, the animal might have been seeri in time to avoid killing her. In such a state of the case, it cannot properly be affirmed that there was no evidence tending to show negligence on the part of those operating the train.—A. G. S. R. R. Co. v. Boyd, 124 Ala. 525; L. & N. R. R. Co. v. Davis, 103 Ala. 661; Ib. v. Gentry, 103 Ala. 635. The general charge for defendant was properly refused.

Affirmed.